GEORGE MCFARLEY, JR., APPELLANT,
v.
LILLIE B. MCFARLEY, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
George McFarley sought to voluntarily dismiss his petition for dissolution of marriage after his wife filed an answer requesting support and custody. The court held that the wife's requests for both temporary and permanent support and custody constituted counterclaims that prevented the husband from effecting a unilateral voluntary dismissal under Florida civil procedure rules.
The court held that the wife's answer requesting both temporary and permanent support and alimony, along with custody of the children, constituted counterclaims within the meaning of Rule 1.420(a)(2), which prevented the husband from effecting a unilateral voluntary dismissal of the action.
[1] A voluntary dismissal of a dissolution of marriage petition is precluded when the respondent spouse has filed an answer seeking affirmative relief, such as permanent alim…
[2] A spouse's answer in a dissolution of marriage proceeding seeking custody of children constitutes a counterclaim for purposes of preventing voluntary dismissal.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“a motion for custody of the children of the marriage, for permanent alimony, and for permanent child support was a counterclaim for the purposes of Rule 1.420(a)(2)”
Establishes the legal standard from Cooper v. Cooper for identifying counterclaims that prevent voluntary dismissal
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceOn March 8, 1976, George McFarley filed a petition for dissolution of marriage. His wife filed an answer on April 26, 1976, requesting denial of the p…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Temporary Relief cases and more on FLexlaw
ON PETITION FOR REHEARING
RYDER, Judge.
In an opinion filed October 26, 1977, this court vacated the order appealed from and remanded the cause to the trial court with directions to dismiss the action.
However, upon petition for rehearing filed by appellee, the court has reviewed the entire record and file herein and recedes from said opinion and substitutes the present opinion therefor. On March 8, 1976, appellant, George McFarley, Jr., filed a petition for dissolution of marriage in the Circuit Court. His wife, the appellee in the case, filed an answer to the petition on April 26, 1976, asking that the petition be denied and requesting support for herself and her children. Additionally, and approximately one month later, she filed a motion for temporary support and the court then entered an order for temporary relief.
On June 13, 1977, Mr. McFarley filed a voluntary dismissal to his petition for dissolution. Several days later, the trial court entered an order on all pending motions which increased the amount of temporary support and granted Mrs. McFarley leave to file a counterpetition. This appeal ensued.
Mr. McFarley argues that the trial court erred in granting his wife’s motions on June 22 when, on June 13, he had filed a notice of dismissal pursuant to Fla.R.Civ.P. 1.420(a)(1). The wife contends that her answer to the husband’s petition for dissolution and her motion for support were counterclaims which prevent voluntary dismissal under Fla.R.Civ.P. 1.420(a)(1). She cites Fla.R.Civ.P. 1.420(a)(2), and Cooper v. Cooper, 194 So. 2d 278 (Fla.2d DCA 1976) in which this court held that a motion for custody of the children of the marriage, for permanent alimony, and for permanent child support was a counterclaim for the purposes of Rule 1.420(a)(2).
In .the opinion of the court filed October 26, 1977, we erroneously found Cooper, supra, inapplicable to the case because we had considered the wife’s petition for custody of the children and alimony to be that of temporary alone. Upon consideration of the wife’s petition for rehearing and a more detailed study of the actual documents filed by wife, we have found that her answer to the petition for dissolution of marriage, although not artfully drawn, did in fact, in paragraph eight of the answer and in paragraph two of the prayer, ask for both temporary and permanent support for the minor children and alimony for herself. Also in paragraph five of her answer, the wife sought custody of her children.
Consequently, we recede from the opinion of October 26, 1977 and find that Cooper, supra, does apply herein. Thus, we consider the claims alluded to above as satisfying the test of Cooper and constituting a counterclaim which prevents a voluntary dismissal by her husband. See also Duke v. Duke, 109 Fla. 325, 147 So. 588 (1933).
For the reasons we have stated, we affirm the trial court’s order on all pending motions and remand the case for proceedings not inconsistent with this opinion.
SCHEB, Acting C. J., and OTT, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Kurth v. Kurth, 539 So. 2d 7 (Fla. 1st DCA 1989)…therefore the trial court had jurisdiction to strike the notice of voluntary dismissal and change venue of the action. Rule 1.420(a)(2), Fla.R.Civ.P.; Siler v. Lumbermens Mutual Casualty Co., 420 So. 2d 357 (Fla. 5th DCA 1982); McFarley v. McFarley, 353 So. 2d 1250 (Fla. 2d DCA), cert. denied, 364 So. 2d 888 (Fla.1978); and Cooper v. Cooper, 194 So. 2d 278 (Fla. 2d DCA 1967). Appellant’s contention that by operation of rules 1.080(b) and 1.090(e), Florida Rules of Civil Procedure, she had five days from servic…
-
Taff v. Taff, 668 So. 2d 275 (Fla. 1st DCA 1996)…ugh inartfully drawn, the husband’s answer to the wife’s petition for dissolution of marriage was sufficient to put the wife and the trial court on notice that the husband intended to contest the issue of primary residency. See McFarley v. McFarley, 353 So. 2d 1250 (Fla. 2d DCA), cert. denied, 364 So. 2d 888 (Fla.1978) (wife adequately requested custody of the children in her answer to husband’s petition for dissolution). MINER, LAWRENCE, and BENTON, JJ., concur.…
Authorities Cited
- Effye Duke v. Duke, 109 Fla. 325 (Fla. 1933)
- Cooper v. Cooper, 194 So. 2d 278 (Fla. 2d DCA 1967)